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COMMONWEALTH PENNSYLVANIA v. MARION JACOBS (04/07/83)

submitted: April 7, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
MARION JACOBS, A/K/A FRANK DAVIS, APPELLANT



No. 225 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Criminal Division, of Northampton County, Misc. No. 441 of 1981.

COUNSEL

Gary Neil Asteak, Assistant Public Defender, Easton, for appellant.

James J. Narlesky, Assistant District Attorney, Easton, for Commonwealth, appellee.

Spaeth, Wieand and Hoffman, JJ.

Author: Wieand

[ 319 Pa. Super. Page 533]

In this appeal from an order granting extradition of Marion Jacobs, a/k/a Frank Davis, to New Jersey, the appellant complains that he was not permitted to apply for a writ of habeas corpus to test the legality of his arrest. Our review of the record suggests that appellant is correct; and, therefore, we reverse and remand.

Jacobs was being held in the Northampton County prison in default of bail on criminal charges pending against him in Pennsylvania when, on October 23, 1981, New Jersey authorities lodged a detainer against him. On November 5, 1981, the District Attorney of Northampton County petitioned for an extension of sixty days within which to file the documents necessary to effect Davis' extradition to New

[ 319 Pa. Super. Page 534]

Jersey. See: 42 Pa.C.S. § 9138.*fn1 This petition was granted and bail was set at $20,000.00*fn2 following an in-camera conference participated in by counsel for the parties, but at which appellant was not personally present. His first appearance in court was for an extradition hearing on January 20, 1982. At that time, his counsel requested an opportunity to file an application for writ of habeas corpus. His request was denied, and the court ordered extradition. Jacobs appealed.

The Uniform Criminal Extradition Act has been adopted in Pennsylvania and codified at 42 Pa.C.S. §§ 9121 to 9148. Section 10 thereof (42 Pa.C.S. § 9131) provides as follows:

§ 9131. Rights of accused person

No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this Commonwealth who shall inform him of the demand made for his surrender and of the crime with which he is charged and that he has the right to demand and procure legal counsel, and, if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof and of the time and place of hearing thereon shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody and to the said agent of the demanding state. (emphasis added).

This section establishes the means by which a detainee may test the legality of his arrest. Commonwealth ex rel. Knowles v. ...


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